August 4, 2012

As reported in this local article, headlined "Judge rules inmate Gary Haugen, seeking execution, has right to reject governor's reprieve," the first round of fascinating role-reversal capital litigation taking place in Oregon has been won by a condemned murderer seeking to be executed. Here are the basics:

Death row inmate Gary Haugen won a legal battle Friday against Gov. John Kitzhaber when a judge ruled he could reject the governor's reprieve of his execution and move forward in his efforts to die by lethal injection. The opinion by Senior Judge Timothy P. Alexander is expected to initiate new adversarial proceedings between the prisoner who volunteered to die and the governor who had a change of heart about capital punishment....

Alexander, a state senior judge handling the case in Marion County, wrote that he put his personal feelings aside, ruling on legal precedent and the facts of the case. He took the unusual step of writing that his decision wasn't intended as criticism of Kitzhaber or the views the governor expressed when he issued the reprieve in November.

"In fact," Alexander wrote, "I agree with many of the concerns expressed by the governor, and share his hope that the Legislature will be receptive to modifying and improving Oregon laws regarding sentencing for aggravated murder. Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever result in executions."

Alexander's opinion says that Kitzhaber can give Haugen a reprieve until he leaves office, but Haugen is not obliged to accept it. "Because (Haugen) has unequivocally rejected the reprieve, it is therefore ineffective," the judge wrote.

Kitzhaber's office responded to the ruling, saying the governor likely will appeal it. "We are confident that the governor's authority will be upheld," the statement said.

Clatsop County District Attorney Josh Marquis, who advocates for Oregon's death penalty, credits Kitzhaber for taking a strong stand on such an emotional issue. But that stand, he said, comes with some political risk, because the majority of Oregon voters support capital punishment. "The downside is, Oregonians are going to look at him when he runs for re-election and say, 'Wait a minute, does he really respect the law?"...

Haugen was sentenced to life in prison for murdering the mother of his former girlfriend in Northeast Portland in 1981. He later murdered a fellow prisoner at Oregon State Penitentiary. A jury sentenced him to death in 2007....

If the governor appeals, the case could go before the Oregon Court of Appeals or the Oregon Supreme Court, depending on decisions made by parties to the case, said Phil Lemman, a spokesman for the Oregon Judicial Department. After that, a death warrant hearing would need to be scheduled before Haugen could be executed. "We're a ways away from knowing when any execution date would be," Lemman said.

The process struck Richard Dieter, director of the Death Penalty Information Center, as wasteful. "This case is probably going to drag through more courts and go back and forth before it's finally decided," said Dieter, whose organization collects comprehensive national data on capital punishment and is widely viewed as opposed to the death penalty.

The full seven-page ruling in this first round of Haugen v. Kitzhaber is available at this link.

New astute articles on the modern realities of pot politics, policies and practices

Anyone following closely discussions and debates over marijuana policy (which is a sentencing law and policy issue in so many ways) can and should find time to read these terrific recent articles on the topic:

Both of these pieces present effective and sober assessments of the state of pot politics, policies and practices circa summer 2012. Both also highlight the degree to which state marijuana policies and practices will always be significantly (and unduly?) shaped by federal marijuana policies and practices. Here is a small excerpt from the first piece to that point:

Colorado’s evolution reflects the broader lessons states have learned in the decade and a half since California became the first state to approve medical cannabis in 1996. In that time, California has gained a reputation as something of the Wild West for weed: no state regulatory model, notoriously lax enforcement and an undefined set of prescription criteria that makes obtaining a medical marijuana card little more than a wink-wink formality. But as more states have legalized medical marijuana -- today it’s legal to some degree in 17 states plus the District of Columbia -- a more tightly controlled approach seems to be emerging. Ten states and D.C. have set up a system of authorized dispensaries, and 16 states have outlined specific conditions for which medical marijuana can be used. Even California has considered reining things in: Lawmakers moved this summer to develop the state’s first comprehensive licensing and permitting structure.

But no matter how controlled a state’s medical marijuana policy may be, federal law still bans the cultivation, distribution and possession of marijuana for any purpose. The Obama administration has stated that it will not prosecute patients, but growers and distributors in medical marijuana states have still been targeted by multiple federal agencies, including the Justice Department and Internal Revenue Service (IRS). Medical marijuana businesses continue to operate in a legal gray zone. “In any other business, if you fail, you file for bankruptcy and move on. If you fail in this business, you go to jail,” says Arbelaez, a patient himself and a former attorney who moved to Denver from New Orleans in 2009. “The one thing I can hold onto is complete compliance. The Colorado legal code is our only line of defense. It’s the only way to show regulation is better than prohibition.”

The Governing magazine also has these related articles for its August 2012 issue:

August 3, 2012

"Former Gov. Don Siegelman sentenced to 78 months in prison"

The title of this post is the headline of this local article reporting on a former Alabama Governor's resentencing outcome this afternoon in federal district court. Here are the basics:

A federal judge sentenced former Gov. Don Siegelman to 78 months in prison. U.S. District Judge Mark Fuller handed down the sentence -- 10 months less than what he originally gave Siegelman -- after hearing emotional statements by Siegelman in Montgomery federal court.

Before sentence was passed, Siegelman, his voice cracking, told Fuller that he was sorry for his actions and the embarrassment and disappointment he has caused. "I do have deep regrets and remorse for my actions," Siegelman said at his sentencing hearing this afternoon.

Siegelman, said he wanted to apologize to the judge, his family and to the people of Alabama. "I'd like to apologize to the people of Alabama for the embarrassment my actions have caused," Siegelman said. Siegelman, 66, stood before the same federal judge that sentenced him to more than seven years in prison in 2007, and pleaded for mercy....

A federal jury in 2006 convicted Siegelman of federal funds bribery on allegations that he sold a seat on a hospital regulatory board to former HealthSouth CEO Richard Scrushy in exchange for $500,000 in donations to Siegelman's 1999 referendum campaign to establish a state lottery.

Siegelman served nine months of an 88-month sentence before being released in March 2008 on an appeal bond. A federal appeals court tossed out two of the charges against him, which prompted today's resentencing. Siegelman's lawyers had asked for time served plus community service or a lengthy probation. Prosecutors asked that Siegelman be given 88 months again.

Fuller said he acknowledged Siegelman had good things for the state, but he simply could not give a person who solicited a bribe less prison time than the person who paid it. Scrushy was sentenced to almost seven years in prison although Fuller later cut that by a year.

Fuller said he had no animosity toward Siegelman but noted that today was the first time he heard Siegelman say he respected the system. "Governor Siegelman it has been a long seven years, good luck to you, sir," Fuller said.

The Blog of Legal Times has this new post about this notable en banc ruling handed down by the DC Circuit. Because all the opinions in the ruling run over 100 pages, I will rely here on The BLT's post provide a summary of the two leading opinions:

Bryan Burwell maintains he didn't know the gun he was holding during a bank robbery was capable of automatic fire. The gun, an AK-47, cost him an extra 30 years in prison.

A divided federal appeals court in Washington ruled today that prosecutors were not required to prove at trial that Burwell knew the firearm was a machine gun. The U.S. Court of Appeals for the D.C. Circuit, sitting in a rare session as a full court, upheld the 30-year mandatory prison term for possession of a machine gun. The court ruled 5 to 3 in favor of the U.S. Justice Department.

Judge Janice Rogers Brown, writing for the majority, said there's nothing unfair in the statute. Burwell, the court said, knew he was committing a violent crime when he robbed two banks. It's not unusual, Brown wrote, to punish defendants for unintended consequences of unlawful acts. "The higher penalties attached to the use of the most dangerous kinds of firearms reflect Congress's desire to create a deterrent commensurate with the increased danger posed by these weapons," Brown said.

A jury in Washington's federal trial court convicted Burwell in 2005 for his role in a robbery conspiracy that Brown said employed "old school tactics," including pistol-whipping and subduing bystanders. Burwell was sentenced to about 11 years for the robbery scheme. On top of that, the trial judge tacked on an additional 30 years for possession of a machine gun.

The National Association of Criminal Defense Lawyers and the Federal Public Defender's Office supported Burwell in the appeal, saying that prosecutors should have been required to prove Burwell's knowledge that he was brandishing a machine gun during a robbery spree in Washington in 2004....

Writing in dissent, Judge Brett Kavanaugh posed a hypothetical situation in which, under the majority decision, an altar boy can be found guilty both of theft and drug possession for stealing a collection plate that held cash and a bag of cocaine sewn into the lining. "The presumption of mens rea embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again," Kavanaugh wrote in the dissent, joined by Judge David Tatel. "The presumption of mens rea is no mere technicality, but rather implicates 'fundamental and far-reaching' issues, as this case well illustrates."

Kavanaugh wrote in his 51-page dissent — nearly twice as long as the majority opinion — that "the debate over mens rea is not some philosophical or academic exercise. It has major real-world consequences for criminal defendants. And it takes on added significance in an era of often lengthy mandatory minimum sentences."

Plaintiffs-Appellants Peter Graziano, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, and Brian Jacques (collectively, “Plaintiffs”) filed this class action against Defendants-Appellees George Pataki, the Governor of the State of New York; Robert Dennison, the Chairman of the New York State Division of Parole; and the New York State Division of Parole (collectively, “Defendants”) on behalf of themselves and all other New York State prisoners convicted of violent felony offenses. Plaintiffs allege that they have been denied parole as a result of an “unwritten policy” to deny parole to violent felony offenders, and that this unofficial policy violates three provisions of the federal constitution: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) the Ex Post Facto Clause. Because we conclude that Plaintiffs have failed to state a claim for violation of their rights under any of these provisions, we affirm the December 10, 2010 judgment of the United States District Court for the Southern District of New York granting Defendants’ motion to dismiss Plaintiffs’ complaint pursuant to Rule 12(c) of the Federal Rule of Civil Procedure.

Here is how the dissenting opinion by Judge Underhill, a district judge sitting by designation, gets started:

The allegations in this case are staggering: According to plaintiffs, the former Governor of New York and the head of the State Parole Commission conspired to convert hundreds of indeterminate sentences into determinate sentences of life in prison without the possibility of parole. The complaint alleges that the defendants adopted an unwritten policy to deny parole to all prisoners convicted of class A-1 felonies, no matter their record of rehabilitation or fitness for release. They did so to advance their own “political and economic agenda.” First Amended Compl. ¶ 2. Their purported scheme circumvented the commands of both legislators and judges; the legislature instructed the Parole Board to consider eight factors when determining whether offenders are ready to rejoin their communities and judges imposed open-ended sentences believing that the Parole Board would do so. But the Governor’s purported policy flouted these directives. It allegedly turned parole hearings into sham proceedings -- inmates could present evidence and call witnesses, but they would waste their breath because the policy tied the commissioners’ hands. As a result, the Governor and the Parole Board consigned hundreds of people to life in prison.

At least, that is what the complaint requires us to assume. But the majority downplays these factual allegations in the complaint and reframes the plaintiffs’ legal claim for relief. Because, when viewed in the proper light, the complaint states a plausible claim for a violation of substantive due process, I respectfully dissent.

Victim's family, 32 years later, now seeks closure via life (with parole) rather than deah sentence

This fascinating local story out of Texas, headlined "Long-serving Death Row inmate makes deal, could be paroled in 12 years," provides a distinctive perspective on what closure can end up meaning for some family members of murder victims. Here are the remarkable details:

Delma Banks Jr., who has been on Death Row for three decades, accepted a life sentence Wednesday and will be eligible for parole in 2024 under an agreement with Bowie County prosecutors. Banks, 53, was convicted of fatally shooting 16-year-old Richard Whitehead in 1980 in a park near Texarkana and stealing his car.

In 2004, the U.S. Supreme Court overturned Banks' death sentence, finding that Bowie County prosecutors who tried the case suppressed evidence and deliberately covered up their mistakes for decades. A new punishment trial was scheduled for October in Collin County, where it was moved on a change of venue.

Bowie County District Attorney Jerry Rochelle told the Texarkana Gazette that Whitehead's family wanted the case to end. "They were ready for some closure," Rochelle told the newspaper. "After 32 years of dealing with the offense, the death of their son, the original trial, the appeals and the prospect of a new trial, they were ready for it to end."...

There were no witnesses to the killing and no physical evidence linking Banks to it. The prosecution's case relied largely on the testimony of Robert Farr and Charles Cook, both admitted drug users; Cook also had convictions for robbery by assault and forgery. Banks had no criminal history, and people who were with him and Whitehead on the last night that Whitehead was alive testified there was no ill will between the two.

Banks is black; Whitehead was white. An all-white Bowie County jury convicted Banks and returned a death sentence. In 1999, a federal judge forced Bowie County to open its case records. Banks' lawyers found a transcript showing that Cook's testimony had been extensively rehearsed and coached. They also learned that police paid Farr, an informant who had an unreliable record, $200 for his role in the investigation.

Farr said in an affidavit that he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Banks, he said. Prosecutors allowed Cook and Farr to lie in court and never told jurors that their information was false, the Supreme Court found.

In arguments before the Supreme Court, state lawyers did not dispute that Cook had been coached and that Farr was paid for his help. But they said Banks' lawyers were at fault for not uncovering the information sooner. In 2003, Banks got within 10 minutes of his scheduled execution before the Supreme Court stopped it....

In previous motions, Banks also sought to challenge the jury's decision that he was guilty, based on the court's findings that prosecutors had erred in the trial. But in the agreement signed Wednesday, Banks agreed to no further challenges of his conviction. He will be 65 when he is eligible for parole, and he will have served 44 years in prison.

George Kendall, an attorney for Banks, issued a brief response to the agreement: "After 32 years, the State has decided to no longer seek the death penalty in this case. We hope the resolution of this case will bring closure to all concerned."

August 2, 2012

"Preventive Detention in Europe and the United States"

Preventive detention, both within the criminal justice system and outside it (e.g. commitment, quarantine and wartime confinement), is under-theorized. The European Court of Human Rights has recently issued a spate of opinions that begin to deal seriously with the issue, in a more sophisticated manner than American courts have. This paper describes the European decisions, especially the European Court's decision in M. v. Germany, compares those decisions to American law on preventive detention, and discusses how principles I have developed in other work can further the analysis.

Montana case shows technology in addition to — or rather than? — toughness needed to stop some drunk drivers

Regular readers know that I consider drunk driving to be a serious and dangerous crime which merits serious and dynamic criminal justice responses. And this new local story out of Montana, headlined "Released from prison in June, Billings man charged with DUI No. 13," reinforces my sense that we need to use technology as well as (or perhaps in lieu of) tough prison sentences to keep persistent drunk drivers from being an enduring menace to innocent persons on our nation's roadways. Here are the basics:

Bond was set at $100,000 on Wednesday for a Billings man charged with his 13th drunken-driving offense less than six weeks after he completed a 10-year stint behind bars for his 12th. John Harvey Hoots, 53, appeared in Justice Court by video from the county jail following his arrest Tuesday evening. Judge Larry Herman set the high bond after prosecutors said Hoots has 12 prior DUI convictions and a criminal record in five states.

Hoots was released from prison on June 25 after serving a 10-year sentence his 12th DUI. Prosecutors said Hoots could face designation as a double persistent felony offender, which carries a minimum sentence enhancement of 10 years.

According to court records, a man called police at about 7:30 p.m. Tuesday to report that Hoots was outside the man’s house on South 28th Street yelling, taking off his clothes and “displaying his rear end in an offensive manner.” Hoots left, but returned a few minutes later and walked to the front of the man’s house and said he had a gun, the man told police.

When officers arrived, the man pointed out Hoots as he was driving away in a pickup truck. The officers tried to stop the truck, but the driver continued for some distance before pulling into a parking lot. Hoots showed signs of intoxication, and officers said they found a plastic beer cup in the truck. No gun was found, but Hoots was “uncooperative, would not listen, and displayed an aggressive attitude toward the officers,” court records state.... Hoots is charged with felony DUI and misdemeanor counts of driving without a valid license and driving without insurance....

Prosecutors said Hoots has eight prior DUI convictions in Montana and four DUI convictions in other states. The most recent DUI conviction and prison sentence stemmed from his arrest in April 2002, when officers stopped his vehicle after receiving a report of a gas drive-off. Hoots was on probation for a prior DUI at the time.

Whether he is viewed as sick or evil or given some other diagnostic label, it would seem beyond any and all dispute that John Harvey Hoots is simply incapable of keeping himself from getting drunk and than getting behind the wheel. Usefully, the decade he spent in prison from 2002 to 2012 helped keep Montana roads safe from this menace (and may well have saved untold number of innocent lives from the roadway carnage Hoots risks causing when a free man).

But while the roadway safety benefits of keeping Hoots incarcerated for a decade must be acknowledged, so too must be the significant costs of incapaciting Hoots in his own heartbreak hotel in which taxpayers foot his room and board. And, sadly, Hoots obviously did not learn his lesson or get rehabilitated during this extended stretch in the state pen. Thus, one cannot help but wonder if Montana now, rather than house Hoots behind bars for another decade or more, might seek to develop some (big brother?) technological means — e.g., GPS tracking with a SCRAM bracelet, medication that makes user sick if he drinks liqour — to keep the roads in the Big Sky State safe from Hoots in a more cost effective way.

I would never urge anyone to seek a prison stay just to get the benefits of free room, board and medical care all provided at taxpayer expense. Still, this local story discussing an audit of the monies spent on inmate education in Utah provides a stark reminder that one way to get access to significant taxpayer-funded government benefits is to be incarcerated. The story is headlined "Educating Utah inmates costs more than other adults, with payoff uncertain," and here is how it starts:

Providing inmates with educational services is viewed as one way to keep them from returning to prison, but a newly released audit says the Utah State Office of Education is spending more money per student providing academic services to inmates than it does on traditional adult education clients and has little data to show how academic achievement boosts job prospects or reduces recidivism.

The audit also found some inmates take hundreds of hours of classes with little to show for it, while others continue in educational programs even after earning a diploma or certificate — resources auditors said could be used to help other inmates or funneled into other programs.

In one program, an inmate student achieved only one level gain after more than 1,000 "contact" hours. Another inmate student who received a diploma, notching a high GPA, had more than 3,000 contact hours but still tested at a first grade level in math, which allowed the inmate to continue receiving educational services.

Better monitoring is needed, an auditor told the Legislative Audit Subcommittee on Wednesday. "We question the value of a diploma awarded with a high GPA when the student continues to function at such low levels," auditors said in the report. "Programs should not be designed to take longer, simply because an inmate has more time available. Not only is there a disparity of contact hours between jail, prison, and traditional adult education, but some inmate programs have what appears to be an excessive number of contact hours."

Lawmakers asked auditors to look at the effectiveness and efficiency of high school education programs — adult high school education, adult basic education and English language classes — offered at Utah’s jails and prisons. They also asked the Utah Department of Corrections to prepare a report on the impact of education programs on recidivism, a study that is still in process.

Last year, 21 local school districts, under direction of the Utah State Office of Education, provided educational services to some 5,268 inmates at 23 jails and both state prison locations. The amount spent on the programs in 2011: $5.4 million, money that came primarily from the USOE’s adult education budget and the Utah Department of Corrections’ education fund.

August 1, 2012

"Why Does The Government Want To Shut Up Bryan Epis?"

In this recent prior post, I reported on a remarkable resolution to a remarkable federal criminal justice matter involving Bryan Epis, a California cannabis club operator. I became aware of this story via Epis's attorney John Balazs, whom I invited to contribute additional thoughts about the case via a guest blog post. John Balazs sent me a commentary with the heading that appears in the title of this post, and here is the interesting information and ideas that followed:

Bryan James Epis is a well-known medical marijuana activist who is believed to be the first person to be tried in federal court for cultivating marijuana for medical purposes after the 1996 ballot initiative that legalized medical marijuana in California. Although only 458 plants were found at his residence, the government extrapolated from a disputed spreadsheet to project that his “conspiracy” to grow marijuana was for at least 1,000 plants, the threshold to trigger a mandatory minimum 10-year sentence. Epis was found guilty at a jury trial of conspiracy to grow more than 1,000 plants and of producing more than 100 plants. He was sentenced to 10 years imprisonment, a $15,000 fine, and 10 years of supervised release. After multiple post-trial evidentiary hearings and extensive litigation, his conviction and sentence were upheld on appeal.

In January 2011, Epis filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §2255, the federal equivalent of habeas corpus action to challenge a state conviction. The motion included a number of claims for relief, including that Epis’s trial attorneys were ineffective in advising him concerning a plea offer and that the government committed misconduct in misrepresenting the nature of the spreadsheet. The motion was supported by a 51-page Memorandum of Points and Authorities and numerous other documents. I was Epis’s attorney in his § 2255 litigation.

Last month, the district court signed off on a rare settlement agreement in which Epis’s conviction on the conspiracy count was vacated and he was resentenced to 90 months on his conviction of growing more than 100 marijuana plants within 1,000 feet of a school. With the time he has already served, the agreement results in his remaining sentence cut by more than half. Speaking for myself only, this blog is to comment on a couple of the more unusual and significant aspects of the settlement.

This case is one of the first after the Supreme Court’s decision in March in Lafler v. Cooper, 132 S.Ct. 1376 (2012), where a defendant obtained relief on a ground that was upheld in Lafler, i.e., that his trial attorneys rendered ineffective assistance in violation of the Sixth Amendment by providing deficient advice that resulted in him turning down a government plea offer and receiving a harsher sentence. Before the settlement, the parties deposed Epis’s trial attorneys, who did not refute the basis of Epis’s claim as neither could sufficiently recall their legal advice to Epis regarding the government’s offer. Given a likely evidentiary hearing, additional briefing, a potential appeal, and significant litigation risk on both sides, the settlement made sense for everyone. Although the essential agreement was reached quickly after the deposition concluded and Lafler was decided, the case was delayed while the government sought guidance from the Department of Justice in D.C. concerning how to deal with the Lafler claim. Ultimately, I was told that the DOJ would not be issuing any policy memo to U.S. Attorneys on Lafler claims and that each office should deal with such claims as appropriate on a case-by-case basis.

When the final agreement was ironed out, the government insisted on a condition barring Epis from advocating with respect to marijuana during his imprisonment and supervised release. While courts have upheld conditions of supervised release that limit First Amendment rights when reasonably related to the protection of the public, e.g., United States v. Ross, 476 F.3d 719 (9th Cir. 2007) (upholding condition barring association with neo-Nazi/white supremacy groups), I cannot comprehend what legitimate interest the government has in requiring a broad First Amendment restriction that bars lawful advocacy for the reform of our marijuana laws. The condition itself is vague and it’s unclear what actions are prohibited. Is Epis now barred from writing his Congressperson to ask that our country’s federal drug laws be amended to allow individual states to permit its residents to use marijuana for medical purposes? And, even if the government could lawfully bar Epis from any advocacy to change our marijuana laws (which I doubt), why does it want to do so? Putting aside the doubtful constitutional validity of a broad, no-advocacy condition, prohibiting U.S. citizens from lawfully advocating to reform our laws — on marijuana or otherwise — is bad policy and bad precedent.

As reported in this AP piece, the "Indiana Supreme Court on Tuesday upheld a sentence of life without parole for a teenager who said he wanted to be like the fictional television serial killer Dexter a few weeks before strangling his 10-year-old brother." The court split 3-2 in its ruling in Conley v. Indiana, No. 58S00-1011-CR-634 (Ind. July 31, 2012) (available here), and here is how the majority opinion gets started:

This case involves a seventeen-and-a-half-year-old who murdered his ten-year-old brother. Andrew Conley confessed to the crime and pleaded guilty to murdering his brother, Conner, while Conley was babysitting Conner. Following five days of sentencing testimony, including the testimony of twelve witnesses and one-hundred-and-fifty-five exhibits, the trial court judge sentenced Conley to life without parole. We hold that based on the age of Conley, the age of Conner, and the particularly heinous nature of the crime, a sentence of life without parole was appropriate. We hold that on the facts of this case, the sentence of life without parole is constitutional.

The majority opinion in Conley discusses the recent SCOTUS Miller opinion at length. So does the dissent, which ends with this paragraph:

I disagree with the majority’s characterization of Conley’s “hardened character.” Slip op. at 12. While many juveniles may commit crimes that “reflect[] unfortunate yet transient immaturity,” only “the rare juvenile” is capable of committing a crime that “reflects irreparable corruption.” See Roper, 543 U.S. at 573. I cannot conclude at this time that Andrew Conley is one of those rare juveniles. For this reason I would revise his sentence to the maximum term of sixty-five years.

Commentary links drug war realities to latest DOJ letter to US Sentencing Commission

Phillip Smith writing at Drug War Chronicle has this notable new commentary reacting t0 the Justice Department's recent letter to the US Sentencing Commission (discussed here). The commentary is headlined "DOJ to Sentencing Commission: Fewer Prisoners, Please," and here are excerpts:

In a congressionally mandated annual report to the US Sentencing Commission on the operation of federal sentencing guidelines, the US Department of Justice (DOJ) said continuing increases in the federal prison populations and spending are "unsustainable" and called on the commission to work with other stakeholders to reduce federal corrections costs. But the report failed to address the single largest factor driving the growth in the federal prison population: the huge increase in the number of federal prisoners doing time for drug offenses.

According to data compiled by Drug War Facts and based on Bureau of Justice Statistics reports, in 1980, there were some 19,000 federal prisoners, with some 4,500 having a drug offense as their most serious offense. By 2010, the number of federal prisoners had increased tenfold to more than 190,000, and a whopping 97,000 were doing time for drug offenses, also a tenfold increase. The percentage of drug offenders increased during that period from roughly 25% of all federal prisoners in 1980 to 51.7% in 2010....

With budgets flat, criminal justice spending has to get more bang for the buck, the DOJ letter said. "We must ensure that our federal sentencing and corrections system is strong but smart; credible, productive and just; and budgetarily sound," the letter said. "But maximizing public safety can be achieved without maximizing prison spending. The federal prison population — and prison expenditures — have been increasing for years. In this period of austerity, these increases are incompatible with a balanced crime policy and are unsustainable....

It is clear what is driving the growth in the federal prison population and the federal corrections budget: drug war prisoners. While the Obama administration DOJ is to be credited with taking some steps that move in the direction of reducing the number of prisoners and the corrections budget, such as supporting the partial reform of the crack/powder cocaine sentencing disparity, its failure to directly address the consequences of policies of mass imprisonment of drug offenders means that it is missing the elephant in the room.

While spotlighting a critical reality about the real budget/prison costs of the federal drug war in light of lean budget times, this commentary relies on some old data. According to the BOP weekly population report (available here), there are now 218,186 federal prisoners, which likely means there are surely now many more than 100,000 defendants doing federal time (and getting food, housing and medical care at federal taxpayer expense) for drug offenses.

July 31, 2012

Notable assessment of California's ugly lethal injection litigation

Debra Saunders always brings an interesting perspective to sentencing debates, and her latest piece discussing California litigation over lethal injection protocols is no exception. The piece is headlined "As Sacramento dawdles, district attorneys revolt," and here are excerpts:

California's death penalty has been in limbo since 2006, when a federal judge stayed the execution of Michael Morales, who was sentenced to death for the brutal 1981 murder and rape of 17-year-old Terri Winchell. The judge was fearful lest the state's three-drug lethal injection protocol would cause Morales undue pain. Since then, a number of states have switched to a one-drug protocol. Why hasn't California? The answer could be that Gov. Jerry Brown and Attorney General Kamala Harris don't want the death penalty to work.

Brown and Harris are personally opposed to the death penalty, but when they campaigned for office in 2010, both pledged to carry out the law. They're not exactly knocking themselves out to do so.

In 2009, Ohio adopted a one-drug protocol for executions. By administering a lethal dose of barbiturates, Ohio made it harder for frivolous appeals to keep the state from enforcing its laws. Several states followed suit, including Washington. Washington is important because the U.S. Court of Appeals for the 9th Circuit refused to stay a single-drug execution there in 2010.

California officials still are sticking with a three-drug protocol mired in legal challenges. Sacramento has been so ineffective that Los Angeles District Attorney Steve Cooley asked a Los Angeles Superior Court judge to make the state order the single-drug executions of multiple murderers Tiequon Cox and Mitchell Sims....

Believe it or not, a California deputy attorney general actually showed up in court to fight Cooley's effort -- in the name of Brown's Department of Corrections. The California Department of Justice argued that Cooley's gambit, if successful, would put Corrections in an "impossible position" because of Marin Superior Court Judge Faye D'Opal's injunction against executions pending new regulations. Hanisee counters that D'Opal doesn't have the authority to stop all executions. Besides, D'Opal faulted the state's rejection of a one-drug protocol.

"The murderer and the state's chief law enforcement officer were both on the same side," observed a disgusted Michael Rushford, president of the tough-on-crime Criminal Justice Legal Foundation....

San Mateo County District Attorney Stephen Wagstaffe ... also has asked a superior court to order a single-drug execution, of convicted killer Robert Fairbank. "At present," the San Mateo brief argues, "the laws of this state are not being enforced by the agency designated to do so."...

Death penalty foes have succeeded in placing a measure on the November ballot to repeal California's death penalty. As it is now, the more than 720 inmates on California's death row are likelier to die from natural causes or suicide than they are from lethal injection. Advocates then can point to the de facto death penalty moratorium and argue that capital punishment is an expensive failure.

Their spokesmen can point to gestures Brown and Harris have made to uphold the law, but Rushford believes that the governor and attorney general are deliberately failing to carry out California's death penalty law. Brown "doesn't want to enforce the death penalty," Rushford said. "That's what I believe, and everything he's done proves it."

As reported in this local article, headlined "Jimmy Dimora sentenced to 28 years in prison, defense attorney calls it a 'death sentence'," a very high-profile federal criminal corruption case involving Cleveland politicians concluded with a very long sentence handed down this afternoon. Here is how the local article begins:

U.S. District Judge Sara Lioi handed down a 28-year sentence to former county Commissioner Jimmy Dimora, who was convicted in March of racketeering and 32 other bribery- and corruption-related crimes.

Afterward, Stephen D. Anthony, Special Agent in Charge of the Cleveland FBI said: "There are lots of reasons to be positive and optimistic going forward. It is our hope this case will give pause to any individual who considers violating the public trust."

Dimora, 57, gave an emotional brief statement in court today, denying any wrongdoing or that he bilked Cuyahoga County taxpayers. Wiping tears from his face, Dimora also asked Judge Sara Lioi to not separate him from his family because of his health.

His attorney, William Whitaker, said Dimora's statement to the court was true and accurate -- that he never traded his votes for anything. He said his defense has raised a number of issues, including Dimora's ability to get a fair trial. They will appeal those issues, as well as the 28-year sentence, which he called "grossly unfair." Whitaker called Lioi's ruling a "death sentence."

Dimora would be 85 years old if he were to complete the 28-year prison sentence. His attorneys requested he be sentenced to prison in Buckner, N.C., because of its health facilities for prisoners. Lioi said she would recommend it.

While using his walker as he was escorted from the courtroom, Dimora said to prosecutors, "I hope you guys are happy."

Before she handed down the sentence, Lioi said Dimora abused his power as a politician. “The reach of his corruption was far and wide,” Lioi said. "The destruction left in its wake is incalculable."

The conduct was part of daily workings in Cuyahoga County, a pervasive pattern of corruption, she said. "In the world of Cuyahoga County corruption, they had somewhat of a symbiotic relationship," she said.

Lioi said that while Dimora did good things as mayor of Bedford Heights, his behavior become less about helping others and more about helping Jimmy Dimora. "Somewhere along the way he began using his power and authority for his own benefit."

U.S. District Judge Sara Lioi said [based on her] federal sentencing guideline [calculations] that Dimora could be looking at between 292 to 365 months in prison....

Federal prosecutors have asked Lioi to put Dimora behind bars for at least 22 years for racketeering and 31 other corruption-related charges. Federal probation department officials recommended Dimora be sentenced to life in prison, while defense lawyers had asked for a much lighter, although unspecified, sentence....

Dimora's attorneys argu[ed] he should get less time due to physical condition and age. Andrea Whitaker, one of Dimora’s attorney, asked for the court to consider less of a prison sentence due to what she described as his “ailing health” conditions.

“Prison is a more severe experience for people with health conditions,” Whitaker said. "Mr. Dimora's health issues are real, they aren't imagined." Whitaker said mass behind his lungs and also suffered from an aneurysm. She also said he had other health related conditions.

Assistant U.S. Attorney Antoinette Bacon, however, said Dimora had the same health issues when he committed the crimes. “He’s only 57 years old,” Bacon said. “He is a relatively young man who has a long life ahead of him.”

Dimora is going to need to have a long life ahead of him if he will even be free again (unless he can get some kind of relief on appeal). Even if he gets full credit for good behavior, the lengthy prison term given to Dimora today means he cannot be free until at least 2036 and is in his 80s.

As an interesting point of reference, I think it is notable that Dimora's sentence is fully twice as long as the sentence given to former Illinois Governor Rod Blagojevich (basic here). Indeed, I cannot recall and am unaware of any sentence for political corruption longer than even 20 years, and thus Dimora may well have today received the longest sentence for political corruption in modern history.

Maryland’s DNA Collection Act, Md. Pub. Saf. Code Ann. §2–501 et seq. (Lexis 2011), authorizes law enforcement officials to collect DNA samples from individuals charged with but not yet convicted of certain crimes, mainly violent crimes and first-degree burglary. In 2009, police arrested Alonzo Jay King, Jr., for first-degree assault. When personnel at the booking facility collected his DNA, they found it matched DNA evidence from a rape committed in 2003. Relying on the match, the State charged and successfully convicted King of, among other things, first-degree rape. A divided Maryland Court of Appeals overturned King’s conviction, holding the collection of his DNA violated the Fourth Amendment because his expectation of privacy outweighed the State’s interests. 425 Md. 550, 42 A.3d 549 (2012). Maryland now applies for a stay of that judgment pending this Court’s disposition of its petition for a writ of certiorari....

Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act....

The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government.... Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government. These factors make it reasonably probable that the Court will grant certiorari to resolve the split on the question presented. In addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.

And, in somewhat related news, Ted Gest in this post at The Crime Report provides a notable report on another official's views on DNA collection practices, which gets started this way:

New Mexico Gov. Susana Martinez, who served as a prosecutor for 25 years, gave a spirited pitch to criminal justice officials from around the U.S. yesterday to push for collecting DNA samples from everyone arrested for a felony.

New Mexico has been a leader in state passage of "Katie's Laws," named for Katie Sepich, who was murdered in New Mexico in 2003. Sepich's assailant, Gabriel Avila, was charged with the crime three years later --- although he had been arrested in the meantime for other offenses, and a Sepich DNA sample was available.

Martinez, who prosecuted the case, said he could have been charged with the crime much sooner had the law been in effect. She spoke to the National Criminal Justice Association's annual national forum, which is being held near Albuquerque, N.M.

New Mexico passed a law in 2006 requiring those arrested for violent felonies to yield DNA samples. The law was expanded last year to collect samples from all accused felons.

Eleventh Circuit clarifies which defendants can benefit from new crack guidelines

The Eleventh Circuit issued a little, but still important, sentencing opinion in US v. Liberse, No. 12-10243 (11th Cir. July 30, 2012) (available here) to clarify just which defendants can now benefit from the new reduced crack guidelines. Here is how the opinion starts:

This is the third decision we have issued in the past month concerning the application of Amendments 750 and 759 to the sentencing guidelines and the scope of a district court’s authority to reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2). In the first two decisions, we held that those amendments did not authorize a court to reduce a sentence under § 3582(c)(2) if the defendant’s guidelines range remained the statutory mandatory minimum after the amendments or if the guidelines range was otherwise not affected by the amendments. See United States v. Glover, — F.3d —, No. 12-10580, 2012 WL 2814303, at *3–4 (11th Cir. July 11, 2012) (statutory mandatory minimum); United States v. Lawson, — F.3d —, No. 11-15912, 2012 WL 2866265, at *2–3 (11th Cir. July 13, 2012) (otherwise unchanged guidelines range). Our decisions in Glover and Lawson establish that “a court cannot use an amendment to reduce a sentence in a particular case unless that amendment actually lowers the guidelines range in that case.” Glover, 2012 WL 2814303, at *3.

This appeal raises a different issue because the pro se appellant’s original guidelines range of 121 to 151 months was above, and thus not affected by, the applicable statutory mandatory minimum of 120 months. As a result, Amendments 750 and 759 would reduce his guidelines range. For those reasons, § 3582(c)(2) gives the district court authority to reduce the sentence in its discretion. Because the court believed it lacked that authority, we vacate its order denying the motion for resentencing and remand for the court to determine whether to exercise its discretion to reduce the sentence.

July 30, 2012

Huge Iranian fraud results in death sentences

As reported in this New York Times piece, which is headlined "Iran Sentences Four to Death Over $2.6 Billion Bank Fraud," Iran has imposed a notable set of sentences in a notable fraud case. Here are the details:

In the first sentences to be handed down in a $2.6 billion embezzlement case, an Iranian court ordered the death penalty for four people in the fraud that was uncovered in a network of Iranian banks last year, Iranian state media reported on Monday.

The four, who were not named in the report by the Fars news agency, were among 39 suspects who were convicted in what the Iranian authorities have described as the biggest financial swindle in the country’s history. The top prosecutor, Gholam Hossein Mohseni-Ejei, told reporters that two of the defendants had been given life sentences, while the others were given sentences of up to 25 years....

The other suspects were not named, but have been said to include managers of bank branches, and a number of clerks who were accused of accepting bribes. Fars quoted Mr. Mohseni-Ejei as saying that the other sentences that were handed down included prison terms of 10 and 20 years, as well as lighter sentences.

Notable comments from Justice Scalia on the Second and Eighth Amendments

Justice Scalia is making the rounds as part of a book promotion tour, and on Sunday he appeared on the "Fox News Sunday" program. This Reuters article about the appearance reports on some of his comments about two Amendments that are often of special interest to sentencing fans. Here are excerpts:

In light of the July 20 massacre in which a gunman killed 12 moviegoers in Colorado, Scalia was asked whether legislatures could ban the sale of semiautomatic weapons. He said the 2008 [Heller] ruling stated that future cases will determine "what limitations upon the right to bear arms are permissible. Some undoubtedly are."

Scalia -- a proponent of the idea that the Constitution must be interpreted using the meaning of its text at the time it was written -- cited "a tort called affrighting" that existed when the Second Amendment was drafted in the 18th century making it a misdemeanor to carry "a really horrible weapon just to scare people like a head ax."

"So yes, there are some limitations that can be imposed," he said. "I mean, obviously, the amendment does not apply to arms that cannot be hand-carried. It's to 'keep and bear' (arms). So, it doesn't apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be ... decided."

Regarding the death penalty, Scalia said opponents want it struck under the ban on cruel and unusual punishment included in the Eighth Amendment of the Constitution. "But it's absolutely clear that the American people never voted to proscribe the death penalty," he said. "They adopted a cruel and unusual punishment clause at the time when every state had the death penalty and every state continued to have it. Nobody thought that the Eighth Amendment prohibited it."

I have a wide array of mixed feelings about Ralph Nader as a politician and policy advocate, but I have no reservations endorsing his advocacy for more political discourse about mass incarceration and the drug war. This Nader advocacy appears in this lengthy new opinion piece headlined "Obama/Romney: Start debating the prison-industrial complex." Here are excerpts:

Ever visit a major prison? The vast majority of Americans have not, despite our country having by far a higher incarceration rate per capita than China or Iran. Out of sight is out of mind.

Imagine the benefits of the average taxpayer touring a prison. The lucrative prison-industrial complex would definitely not like public exposure of their daily operations. Prison CEOs have no problem with a full house of non-violent inmates caught with possession of some street drugs (not alcohol or tobacco)....

Indeed, for the giant Corrections Corporation of America (CCA), times are booming. CCA builds their prisons or buys or leases public prisons from financially strapped governments. Barron’s financial weekly can always be expected to give us the Wall Street perspective. In a recent article titled “Ready to Bust Out,” writer Jonathan R. Laing is bullish on CCA stock....

Mr. Laing writes that CCA has cost advantages over the public-prison sector, paying lower non-union wages and using more automated technology. Besides, the company is a tough bargainer when it buys or operates public prisons. One CCA condition is that the facility must have 1,000 beds, can’t be more than 25 years old, and get this, “the contract must guarantee a 90 percent occupancy rate.” A guarantee backed by taxpayers no less, unless, that is, the clause works to put more prisoners in jail for longer sentences.

The Barron’s article adds that CCA is counting on “the old standby of recidivism to keep prison head counts growing, filling its empty beds.” To the impoverished rural communities where these prisons are located, it’s about needed jobs....

The same perverse incentives apply to the self-defeating trillion-dollar war on drugs (see http://www.drugpolicy.org/). History has demonstrated that driving addictions into illegal undergrounds creates vicious underworld crimes. In Mexico, the so-called drug cartel is getting close to destroying local governments in many regions. In the U.S., half a million people are behind bars for nonviolent drug offenses, the vast majority arrested for mere possession, not production or sale. That is nearly one in four of all prisoners. There are twenty million marijuana arrests every year in the U.S.!

Drug addictions are treated as crimes instead of as health problems, which we do with tobacco and alcohol addictions. Gross racial disparities persists, starting with black teenagers having to go to jail for a drug offense six times more often than a comparable white youth, both with prior clean records (http://www.nyclu.org/content/commission-must-reform-inhumane-drug-laws)....

Right/Left convergence is emerging. Last April, for instance, David Keene, former Chair of the American Conservative Union and Grover Norquist, president of Americans for Tax Reform, joined with the NAACP and other liberals to highlight escalating levels of prison spending and its impact on our nation’s children and poorly performing schools. Connecticut spends $40,000 a year to imprison a juvenile offender compared to less than $12,000 a year to educate a young person.

Other similar convergences over hugely disparate sentencing as with crack and cocaine are forming, making both economic and humane arguments. More young black men are locked up than are in college, according to the Justice Roundtable.

Still, there hasn’t been enough reform pressure even to pass outgoing U.S. Senator Jim Webb’s legislation simply to create a National Criminal Justice Commission Act. This legislation is now stuck in Senatorial limbo. Start up the prison tours. Have some led by articulate, former convicts who are pushing to reform our cruel, costly and ineffective prison system. It is so easy to do much better, if we want to.

July 29, 2012

"Against death penalty? Then debate Colorado"

In the aftermath of the Aurora, Colo., slaughter, the question went forth on all of the political chatter shows: “Will this reopen the debate over gun control?” ... [But] the gun debate flashed for the briefest of moments, like a round of heat lightning that fails to herald a storm, and then disappeared.

Instead, the conversation has moved to other familiar topics. What to do about the mentally ill? How much blame does our violent popular culture deserve? Etc. These are good questions. But you know what debate seems conspicuously absent: Should we execute James Holmes?

Death penalty opponents are fairly mercenary about when to express their outrage. When questions of guilt can be muddied in the media; when the facts are old and hard to look up; when the witnesses are dead; when statistics can be deployed to buttress the charge of institutional racism: These are just a few of the times when opponents loudly insist the death penalty must go.

But when the murderer is white or racist or his crimes so incomprehensibly ugly, the anti-death-penalty crowd stays silent. If your long-term goal is to abolish the death penalty, you want to pick your cases carefully. But the simple fact is, if the death penalty is always wrong, it’s wrong in the politically inconvenient cases, too.

The standards of newspaper writing and civic discourse require that we call Holmes the “alleged” culprit in this horrific slaughter. That’s fine, but if the facts are what we’ve been told they are, then we know this man is guilty and the jury will not have a hard time saying so.

We don’t know whether or not he’s mentally ill, but odds are he isn’t. Indeed, criminologists and psychiatrists will tell you that most mass murderers aren’t insane. But the public debate is already caught up in a familiar tautology. What Holmes did was an act of madness, therefore he must be a madman. And if he’s a madman, we can’t execute him because he’s not responsible for his actions. And if he’s not responsible, then “society” must be. And we can’t execute a man for society’s sins. So: Cue the debate about guns, and funding for mental health, and the popular culture.

Well, I say enough. I favor the death penalty. I don’t support killing insane or mentally disabled people who are truly not responsible for their actions, but I don’t believe that committing an “act of madness” necessarily makes you a madman. But committing an act of wanton evil makes you an evil man. Evil and madness are not synonyms. Societies that cannot distinguish between the two are destined to get more of both.

If the death penalty is always wrong, let us have an argument about James Holmes, a man many Americans are aware of, informed about and interested in. Let us hear why the inequities of the criminal justice system require his life be spared.

That won’t happen. It won’t happen in part because nobody on the Sunday talk shows wants to debate the death penalty when the case for it is strong. They like cases that “raise troubling questions about the legitimacy of the death penalty,” not cases that affirm the legitimacy of the death penalty. But it also won’t happen because death penalty opponents understand that when the murderer is unsympathetic, the wise course is to hold your tongue until the climate improves.

It remains an open question whether Colorado will seek the death penalty. Prosecutors know that doing so would add years and millions of dollars because opponents have so gummed up the legal works. That way they can complain about the outrageous costs of a mechanism they themselves have worked to make prohibitively expensive. I say, let us give Holmes a fair trial. If convicted, execute him swiftly. If you disagree, explain why this man deserves to live.